In a highly useful Wall Street Journal column Professor Harvey Mansfield undertakes close analysis of “The ‘systemic racism’ dodge.” The column opens:
Systemic racism, also known as institutional or structural racism, is a new phrase for a new situation. We live in a society where racism is not, and cannot be, openly professed. To do so not only is frowned upon but will get you into serious trouble, if not yet jail, in America. Yet even though this is impossible to miss and known to all, “systemic racism” supposedly persists. The phrase describes a society that is so little racist that no one can respectably advocate racism, yet so much racist that every part of it is soaked with racism. We live with the paradox of a racist society without racists.
Professor Mansfield concludes:
The cancel culture is a malignant growth from the idea of systemic racism. Those who cancel stop accusing themselves; they step outside of the system they denounce. After asserting the guilt of all whites, these whites give themselves a pass.
“Systemic racism” is a bogus description that issues in an accusation made in doubtful faith that contradicts itself. But it is held by many fellow Americans, so let’s not dismiss it. It’s better to treat it respectfully as a disputable opinion.
I tried to get at the “systemic racism” dodge in my own way in a 2013 Federalist Society presentation on the elimination-of-bias continuing legal education requirement imposed on lawyers by the Minnesota Supreme Court. I called my talk “Bias in the air” and wrestled with the phenomenon of a crime without a perpetrator. This was the conclusion of my remarks:
Who is biased? In the twenty years it has devoted to the problem and what must by now be millions of dollars it has spent on analysis, the Court and its task forces have yet to id. a judge or prosecutor guilty of biased treatment of parties. This is a serious offense that lacks a perpetrator in the traditional sense.
You may recall Justice Cardozo’s teaching in the Palsgraf case that “Proof of negligence in the air, so to speak, will not do.” In Minnesota we have bias in the air. Whatever it is, it must be eliminated and, like the prisoners in Cool Hand Luke, we all must get our minds right.
It is a bizarre enterprise. The April 2002 progress report noted that the implementation committee has worked with the Board of Law Examiners “to identify the causes of racially disproportionate bar passage rates and to promote solutions.” With the requirement of bar passage for licensure, we have a requirement under the direct control of the Court. We can infer from the report that Minnesota bar passage rates are subject to statistical racial disparities. By the Court’s methodology, the Court itself must be guilty of racial bias. At last we can id. a perpetrator.
According to the 2002 report, we also have a remedy. The Board of Law Examiners “works to ensure that at least 25% of the graders are people of color.” Putting the 25 percent number to one side, think about that. Are minority graders required to understand the answers of minority test takers? Do test takers identify their race so that they can be matched up with the right grader? (I am told they do not.) Should they be? On an exam testing professional competence?
Suggesting that the Court is guilty of racial bias, of course, I’m being facetious. I want to make a serious point.
Preparing for my remarks this morning I was unable to get data on the racial disparities in Minnesota’s bar passage rate from the Board of Law Examiners — I was told they don’t keep the data. But racial disparities in bar passage rates are ubiquitous. UCLA Law Professor Richard Sander tells the story in chapters 4 and 5 of Mismatch, the outstanding book he co-wrote with Stuart Taylor, Jr., and Sander does id. a perpetrator. According to Sander, the perpetrator is affirmative action in law school admissions — a thesis I think you are guaranteed never to hear in a Minnesota elimination-of-bias CLE program.
In truth, the elimination-of-bias requirement is farcical. If it’s an offense without a perpetrator, it’s also an incredibly elastic offense. What bias does the Court seek to eliminate? If the elimination-of-bias requirement can be satisfied by courses such as “Understanding Problem Gambling,” as it can, the requirement has become just one more way of making a statement while making the practice of law slightly more unpleasant than it already was or is.
The roots of Minnesota’s elimination-of-bias requirement in the 1993 Supreme Court Racial Bias Task Force Report are rotten. To borrow the term from criminal procedure, it is the fruit of the poisonous tree. Twenty years later a reckoning is long overdue.
Whole thing here.